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Creative Mobile OU v. Lodsys Group

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Creative Mobile OU v. Lodsys Group Powered By Docstoc
					                        IN THE UNITED STATES DISTRICT COURT
                       FOR THE EASTERN DISTRICT OF WISCONSIN



CREATIVE MOBILE O.U.,

                   Plaintiff,
                                                       Case No. ________________________
v.

LODSYS GROUP, LLC,

                   Defendant.


                       COMPLAINT FOR DECLARATORY JUDGMENT
                              (JURY TRIAL DEMANDED)



       Plaintiff Creative Mobile O.U. (“Creative Mobile”) hereby alleges for its Complaint for

Declaratory Judgment against Defendant Lodsys Group, LLC (“Lodsys” or “Defendant”) as

follows:

                                  NATURE OF THE ACTION

       1.      This is an action for a declaratory judgment that Creative Mobile does not

infringe any valid claim of United States Patent Nos. 5,999,908 (the „908 patent); 7,222,078 (the

„078 patent); 7,620,565 (the „565 patent); or 7,133,834 (the „834 patent); (collectively, the

“Asserted Patents”) and for a declaratory judgment that the claims of each of the Asserted

patents are invalid.

       2.      A true and correct copy of the „908 patent is attached as Exhibit A.

       3.      A true and correct copy of the „078 patent is attached as Exhibit B.

       4.      A true and correct copy of the „565 patent is attached as Exhibit C.

       5.      A true and correct copy of the „834 patent is attached as Exhibit D.



                                                 -1-
        6.      The United States Patent and Trademark Office has instituted reexamination

proceedings for the „078 patent and the „565 patent.

                                         THE PARTIES

        7.      Plaintiff Creative Mobile is an Estonia private limited company, with its principal

place of business at Pärnu maantee 130-46, 11317 Tallinn, Estonia. Creative Mobile develops

and publishes mobile games for use on mobile devices including but not limited to Apple, Inc.‟s

(“Apple”) iPhone and iPad, as well as Android-based devices. Creative Mobile creates creative,

fun, and entertaining gaming software solutions for the widespread enjoyment of mobile device

users. Creative Mobile‟s products are distributed through Internet marketplaces such as Google

Inc.‟s (“Google”) Android-based Google Play store and Apple's iOS-based iTunes App Store.

        8.      On information and belief, Defendant Lodsys Group, LLC, formerly Lodsys,

LLC, is a Texas limited liability company and claims to have its principal place of business at

505 East Travis Street, Suite 207, Marshall, Texas 75670. On information and belief, Defendant

is solely a patent licensing entity and does not create any products.

        9.      On information and belief, Lodsys owns the Asserted Patents.

        10.     On information and belief, Mark Small is the Chief Executive Officer at Lodsys.

        11.     On information and belief, Mr. Small conducts Lodsys‟ business from an office

located in Oconomowoc, Wisconsin, within this jurisdictional district. Accordingly, on

information and belief, Lodsys‟ primary place of business and/or headquarters is located within

this jurisdictional district.

        12.     On information and belief, Mr. Small lives and works in Wisconsin, holds a

Wisconsin driver‟s license, is registered to vote in Wisconsin, and is a resident and citizen of

Wisconsin.




                                                 -2-
                                  JURISDICTION AND VENUE

        13.     This is an action under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201

and 2202, for a declaration pursuant to the patent laws of the United States, 35 U.S.C. § 1 et seq.,

that the Asserted Patents are not infringed by Creative Mobile. This Court has subject matter

jurisdiction pursuant to 28 U.S.C. §§ 1331, 1338(a), 2201 and 2202.

        14.      Upon information and belief, this Court has personal jurisdiction over Lodsys

because it has sufficient contacts with Wisconsin as to make personal jurisdiction proper in this

court. Lodsys maintains an office within this district and conducts business related to licensing

and enforcement of the Asserted Patents, including licensing and enforcement actions, from its

location within this judicial district.

        15.      Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b), (c) and

1400(b).

    ALLEGATIONS SUPPORTING DECLARATORY JUDGMENT JURISDICTION

        16.     Creative Mobile realleges and incorporates herein by reference each and every

allegation contained in paragraphs 1-15.

        17.     On or about August 4, 2011, Defendant sent a threatening letter by Federal

Express to Creative Mobile‟s founder, Mr. Vladimir Funtikov, at the Estonian office

headquarters expressly charging that Creative Mobile had infringed Defendant‟s Asserted

Patents (the “Threat Letter”). A true and correct copy of this letter is attached as Exhibit E.

        18.     The Threat Letter accused Creative Mobile of infringing the Asserted Patents.

Specifically, the Threat Letter began by expressing that it regarded Creative Mobile‟s games as

“Infringement[s] of U.S. Patent Nos. 5,998,908, 7,133,834, 7,222,078, and 7,620,565 (Abelow)”

in the Threat Letter‟s subject line.




                                                  -3-
       19.     The Threat Letter stated: “We have reviewed your use of the Lodsys Patents and

have prepared the enclosed claim chart demonstrating at least one instance of how you utilize the

inventions embodied in the Lodsys Patents. The images used in the charts are representative only

and in addition to the charted claim of the referenced patent, you should consider the remaining

claims of that patent and the other Lodsys Patents both with respect to the charted utilization and

to other products and services offered by you.”

       20.     The Threat Letter demanded that Creative Mobile respond to Lodsys within

twenty-one (21) days of the receipt of the letter.

       21.     The Threat Letter also stated: “Lodsys LLC reserves all rights with regard to the

„908, „834, „078, and „565 patents, including: (1) the right to seek damages anytime within the

last six years that your company started to make use of Lodsys‟ patented technology; (2) the

right to change its royalty rate at any time; (3) the right to change this licensing program at any

time without notice, including variance to conform to applicable laws. You should not rely on

any communication or lack of communication from Lodsys, Kelley, Donion, Gill, Huck &

Goldfarb, PLLC, or The Davis Firm Group as a relinquishment of any of Lodsys‟ rights.”

       22.     The Threat Letter also included an “Infringement Claim Chart,” setting forth how

Creative Mobile‟s Drag Racing game allegedly infringes claim 1 of the „078 patent.

       23.     On or about April 12, 2012, Defendant, through its licensing agent, sent a

threatening email to Mr. Funtikov (the “Threat Email”). A true and correct copy of this email is

attached as Exhibit F.

       24.     The Threat Email was sent by Michael Welley, Licensing Executive at Idessence

AG. Mr. Welley wrote that he was contacting Mr. Funtikov “on behalf of Idessence AG, the




                                                  -4-
licensing agent for Lodsys LLC, in regards to a patent infringement claim that was brought

against Creative Mobile in August of 2011.”

       25.     The Threat Email also stated: “As you may already know patent infringement

claims may carry legal implications and a [sic] serious matters.”

       26.     The Threat Email also stated: “Our licenses are calculated using a 0.575% license

rate applied to infringing applications sold between 2007 and September of 2012 in the US.”

       27.     Through communications and conduct, Defendant has repeatedly threatened

assertion of the „908 patent, the „565 patent, the „078 patent, and/or the „834 patent against

Creative Mobile.

       28.     Upon information and belief, Lodsys is solely a licensing entity whose revenue is

generated through its enforcement of the Asserted Patents. Defendant has commenced law suits

against numerous entities in the Eastern District of Texas, alleging infringement of the Asserted

Patents.

       29.     On February 11, 2011, Lodsys filed a lawsuit against twelve (12) companies

alleging infringement of the Asserted Patents. The case is entitled Lodsys, LLC v. Brother

International Corporation, et al., Case No. 2:11-cv-90 and is pending in the Eastern District of

Texas, Marshall Division.

       30.     On May 31, 2011, Lodsys filed another lawsuit in the Eastern District of Texas

against ten (10) additional companies, all of which are developers of mobile software

applications, alleging infringement of the Asserted Patents. The case is entitled Lodsys, LLC v.

Combay, Inc., et al., C.A. No. 2:11-cv-272.




                                                 -5-
        31.     On June 10, 2011, Lodsys filed another lawsuit in the Eastern District of Texas

against ten (10) additional companies, alleging infringement of the Asserted Patents. The case is

entitled Lodsys, LLC v. Adidas America, Inc., et al., C.A. No. 2:11-cv-283.

        32.     On July 5, 2011, Lodsys filed another lawsuit in the Eastern District of Texas

against six (6) additional companies, alleging infringement of the Asserted Patents. The case is

entitled Lodsys, LLC v. DriveTime Automotive Group, Inc. et. al., C.A. No, 2:11-cv-309.

        33.     By virtue of Lodsys‟ actions towards Creative Mobile and other entities, Creative

Mobile is in reasonable apprehension of an imminent patent infringement suit relating to the

Asserted Patents.

        34.     Other entities have also sued Defendant for declaratory judgment on the Asserted

Patents in this and other districts.

        35.     On June 13, 2011, The New York Times Company filed a complaint for

declaratory judgment against Defendant in the Northern District of Illinois seeking a declaratory

judgment of noninfringement and invalidity of the Asserted Patents. The case is entitled The

New York Times Co. v. Lodsys, LLC, No. 1:11-cv-04004 and has been dismissed.

        36.     On June 13, 2011, OpinionLab, Inc. filed a complaint for declaratory judgment

against Defendant in the Northern District of Illinois seeking a declaratory judgment of

noninfringement and invalidity of the Asserted Patents. The case is entitled OpinionLab, Inc. v.

Lodsys, LLC, No. 1:11-cv-04015 and has been dismissed.

        37.     On June 15, 2011, LivePerson, Inc. filed a complaint for declaratory judgment

against Defendant in the Northern District of Illinois seeking a declaratory judgment of

noninfringement and invalidity of the Asserted Patents. The case is entitled LivePerson, Inc. v.




                                                 -6-
Lodsys, LLC, No. 1:110-cv-04088 and was transferred on November 8, 2011 to the Eastern

District of Wisconsin as LivePerson, Inc. v. Lodsys, LLC, No. 2:11-cv-01030.

       38.     On June 30, 2011, DriveTime Automotive Group Incorporated filed a complaint

for declaratory judgment against Defendant in the District of Arizona seeking a declaratory

judgment of noninfringement and invalidity of the Asserted Patents. The case is entitled

DriveTime Auto. Group Inc. v. Lodsys, LLC, No. 2:11-cv-01307-NVW and has been dismissed.

       39.     On July 6, 2011, ESET, LLC filed a complaint for declaratory judgment against

Defendant in the Eastern District of Wisconsin seeking a declaratory judgment of

noninfringement and invalidity of the Asserted Patents. The case is entitled ESET LLC v.

Lodsys, LLC, No. 2:11-cv-00650-JPS and has been dismissed.

       40.     On August 4, 2011, Rightnow Technologies, Inc. filed a complaint for declaratory

judgment against Defendant in the Eastern District of Wisconsin seeking a declaratory judgment

of noninfringement and invalidity of the Asserted Patents. The case is entitled Rightnow Techs.,

Inc. v. Lodsys, LLC, No. 2:11-cv-00737-CNC.

       41.     On August 9, 2011, Wolfram Alpha, LLC filed a complaint for declaratory

judgment against Defendant in the Eastern District of Wisconsin seeking a declaratory judgment

of noninfringement and invalidity of the Asserted Patents. The case is entitled Wolfram Alpha

LLC, et al. v. Lodsys, LLC, No. 2:11-cv-00750-LA.

       42.     On December 2, 2011, PC Drivers Headquarters 1, Inc. filed a complaint for

declaratory judgment against Defendant in the Eastern District of Wisconsin seeking a

declaratory judgment of noninfringement and invalidity of the Asserted Patents. The case is

entitled PC Drivers Headquarters 1 Inc., et al. v. Lodsys, LLC, No. 2:11-cv-01099-LA and has

been dismissed.




                                               -7-
       43.     On December 8, 2011, PCS Sales (USA) Inc. filed a complaint for declaratory

judgment against Defendant in the Eastern District of Wisconsin seeking a declaratory judgment

of noninfringement and invalidity of the Asserted Patents. The case is entitled PCS Sales (USA)

Inc. v. Lodsys, LLC, No. 2:11-cv-01113-CNC.

       44.     On January 4, 2012, The JM Smucker Company filed a complaint for declaratory

judgment against Defendant in the Eastern District of Wisconsin seeking a declaratory judgment

of noninfringement and invalidity of the Asserted Patents. The case is entitled The JM Smucker

Co. v. Lodsys, LLC, No. 2:11-cv-00012-CNC.

       45.     On June 1, 2012, Oracle America, Inc. filed a complaint for declaratory judgment

against Defendant in the Eastern District of Wisconsin seeking a declaratory judgment of

noninfringement and invalidity of the Asserted Patents. The case is entitled Oracle America Inc.

v. Lodsys, LLC et al., No. 2:12-cv-00550-CNC.

       46.     On information and belief, third party Apple is licensed to the Asserted Patents

(“Apple‟s License”) and is expressly permitted, among other things, to use, sell, offer to sell, or

otherwise distribute to its developers, such as Creative Mobile, products and services that

embody the technology covered by the Asserted Patents.

       47.     On information and belief, Defendant purchased the Asserted Patents subject to

Apple‟s License. On information and belief, Apple‟s ability to use the technology embodied by

the Asserted Patents is the purported value of Apple‟s License.

       48.     Apple offers products and services to Creative Mobile to enable Creative Mobile

to offer its products to end users of Apple products. The products and services Apple provides to

Creative Mobile consist, among other things, of Apple application program interfaces, Apple

software development kits, and Apple‟s operating system through which Creative Mobile‟s




                                                 -8-
programs access Apple hardware and software that permit interaction between Creative Mobile

and Apple end users. Apple also provides a comprehensive set of Apple hosting, marketing,

sales, agency, and delivery services that allow Creative Mobile to provide its products such as

Drag Racing to millions of Apple end users.

       49.      On information and belief, third party Google is licensed to the Asserted Patents

(Google‟s License) and is expressly permitted, among other things, to use, sell, offer to sell, or

otherwise distribute to its software developers, such as Creative Mobile, products and services

that embody the technology covered by the Asserted Patents

       50.      On information and belief, Defendant purchased the Asserted Patents subject to

Google‟s License. On information and belief, Google‟s ability to use the technology embodied

by the Asserted Patents is the purported value of Google‟s License.

       51.      Google offers products and services to Creative Mobile to enable Creative Mobile

to offer its products to end users of Google products. The products and services Google provides

to Creative Mobile consist, among other things, of Google application program interfaces,

Google software development kits, and Google‟s operating system through which Creative

Mobile‟s programs access Google hardware and software that permit interaction between

Creative Mobile and Google end users. Google also provides a comprehensive set of Google

hosting, marketing, sales, agency, and delivery services that allow Creative Mobile to provide its

products such as Drag Racing to millions of Google end users.

                                             COUNT I

   DECLARATORY JUDGMENT OF NON-INFRINGMENT OF THE ‘908 PATENT

       52.      The allegations of paragraphs 1-51 are incorporated by reference as if fully set

forth herein.




                                                 -9-
       53.      Neither Drag Racing nor any other Creative Mobile product infringes any valid

claim of the „908 patent asserted by Defendant.

       54.      An actual controversy exists between Creative Mobile and Defendant as to

whether or not Creative Mobile has infringed, or is infringing, the „908 patent; has contributed to

infringement, or is contributing to infringement of the „908 patent; and/or has induced

infringement, or is inducing infringement of the „908 Patent.

       55.      This controversy is such that, pursuant to Federal Rule of Civil Procedure 57 and

28 U.S.C. §§ 2201 et. seq., Creative Mobile is entitled to a declaration, in the form of a

judgment, that Creative Mobile has not infringed and is not infringing any valid and enforceable

claim of the „908 patent; has not contributed to the infringement and is not contributing to

infringement of the „908 patent; and/or has not induced infringement and is not inducing

infringement of the „908 patent. Such a declaration is necessary and appropriate at this time.

                                            COUNT II

   DECLARATORY JUDGMENT OF NON-INFRINGMENT OF THE ‘078 PATENT

       56.      The allegations of paragraphs 1-55 are incorporated by reference as if fully set

forth herein.

       57.      Neither Drag Racing nor any other Creative Mobile product infringes any valid

claim of the „078 patent asserted by Defendant.

       58.      An actual controversy exists between Creative Mobile and Defendant as to

whether or not Creative Mobile has infringed, or is infringing, the „078 patent; has contributed to

infringement, or is contributing to infringement of the „078 patent; and/or has induced

infringement, or is inducing infringement of the „078 Patent.




                                                  -10-
       59.      This controversy is such that, pursuant to Federal Rule of Civil Procedure 57 and

28 U.S.C. §§ 2201 et. seq., Creative Mobile is entitled to a declaration, in the form of a

judgment, that Creative Mobile has not infringed and is not infringing any valid and enforceable

claim of the „078 patent; has not contributed to the infringement and is not contributing to

infringement of the „078 patent; and/or has not induced infringement and is not inducing

infringement of the „078 patent. Such a declaration is necessary and appropriate at this time.

                                            COUNT III

   DECLARATORY JUDGMENT OF NON-INFRINGMENT OF THE ‘565 PATENT

       60.      The allegations of paragraphs 1-59 are incorporated by reference as if fully set

forth herein.

       61.      Neither Drag Racing nor any other Creative Mobile product infringes any valid

claim of the „565 patent asserted by Defendant.

       62.      An actual controversy exists between Creative Mobile and Defendant as to

whether or not Creative Mobile has infringed, or is infringing, the „565 patent; has contributed to

infringement, or is contributing to infringement of the „565 patent; and/or has induced

infringement, or is inducing infringement of the „565 Patent.

       63.      This controversy is such that, pursuant to Federal Rule of Civil Procedure 57 and

28 U.S.C. §§ 2201 et. seq., Creative Mobile is entitled to a declaration, in the form of a

judgment, that Creative Mobile has not infringed and is not infringing any valid and enforceable

claim of the „565 patent; has not contributed to the infringement and is not contributing to

infringement of the „565 patent; and/or has not induced infringement and is not inducing

infringement of the „565 patent. Such a declaration is necessary and appropriate at this time.

                                            COUNT IV




                                                  -11-
   DECLARATORY JUDGMENT OF NON-INFRINGMENT OF THE ‘834 PATENT

       64.      The allegations of paragraphs 1-63 are incorporated by reference as if fully set

forth herein.

       65.      Neither Drag Racing nor any other Creative Mobile product infringes any valid

claim of the „834 patent asserted by Defendant.

       66.      An actual controversy exists between Creative Mobile and Defendant as to

whether or not Creative Mobile has infringed, or is infringing, the „834 patent; has contributed to

infringement, or is contributing to infringement of the „834 patent; and/or has induced

infringement, or is inducing infringement of the „834 Patent.

       67.      This controversy is such that, pursuant to Federal Rule of Civil Procedure 57 and

28 U.S.C. §§ 2201 et. seq., Creative Mobile is entitled to a declaration, in the form of a

judgment, that Creative Mobile has not infringed and is not infringing any valid and enforceable

claim of the „834 patent; has not contributed to the infringement and is not contributing to

infringement of the „834 patent; and/or has not induced infringement and is not inducing

infringement of the „834 patent. Such a declaration is necessary and appropriate at this time.

                                            COUNT V

        DECLARATORY JUDGMENT OF INVALIDITY OF THE ‘908 PATENT

       68.      The allegations of paragraphs 1-67 are incorporated by reference as if fully set

forth herein.

       69.      Based on the above-stated conduct, Creative Mobile is informed and believes that

the Defendant contends that Creative Mobile infringes one or more claims of the „908 patent.

       70.      Creative Mobile denies that it infringes any valid and enforceable claim of the

„908 patent, and avers that the assertions of infringement cannot be maintained consistently with




                                                  -12-
statutory conditions of patentability and the statutory requirements for disclosure and claiming

that must be satisfied for patent validity under at least one of 35 U.S.C. §§ 101, 102, 103, and

112.

       71.      Accordingly, an actual controversy exists between Creative Mobile and

Defendant as to the validity of the „908 patent. The controversy is such that, pursuant to Federal

Rule of Civil Procedure 57 and 28 U.S.C. § 2201 et. seq., Creative Mobile is entitled to a

declaration, in the form of a judgment, that the „908 patent is invalid. Such a declaration is

necessary and appropriate at this time.

                                            COUNT VI

        DECLARATORY JUDGMENT OF INVALIDITY OF THE ‘078 PATENT

       72.      The allegations of paragraphs 1-71 are incorporated by reference as if fully set

forth herein.

       73.      Based on the above-stated conduct, Creative Mobile is informed and believes that

the Defendant contends that Creative Mobile infringes one or more claims of the „078 patent.

       74.      Creative Mobile denies that it infringes any valid and enforceable claim of the

„078 patent, and avers that the assertions of infringement cannot be maintained consistently with

statutory conditions of patentability and the statutory requirements for disclosure and claiming

that must be satisfied for patent validity under at least one of 35 U.S.C. §§ 101, 102, 103, and

112.

       75.      Accordingly, an actual controversy exists between Creative Mobile and

Defendant as to the validity of the „078 patent. The controversy is such that, pursuant to Federal

Rule of Civil Procedure 57 and 28 U.S.C. § 2201 et. seq., Creative Mobile is entitled to a




                                                 -13-
declaration, in the form of a judgment, that the „078 patent is invalid. Such a declaration is

necessary and appropriate at this time.

                                           COUNT VII

        DECLARATORY JUDGMENT OF INVALIDITY OF THE ‘565 PATENT

       76.      The allegations of paragraphs 1-75 are incorporated by reference as if fully set

forth herein.

       77.      Based on the above-stated conduct, Creative Mobile is informed and believes that

the Defendant contends that Creative Mobile infringes one or more claims of the „565 patent.

       78.      Creative Mobile denies that it infringes any valid and enforceable claim of the

„565 patent, and avers that the assertions of infringement cannot be maintained consistently with

statutory conditions of patentability and the statutory requirements for disclosure and claiming

that must be satisfied for patent validity under at least one of 35 U.S.C. §§ 101, 102, 103, and

112.

       79.      Accordingly, an actual controversy exists between Creative Mobile and

Defendant as to the validity of the „565 patent. The controversy is such that, pursuant to Federal

Rule of Civil Procedure 57 and 28 U.S.C. § 2201 et. seq., Creative Mobile is entitled to a

declaration, in the form of a judgment, that the „565 patent is invalid. Such a declaration is

necessary and appropriate at this time.

                                           COUNT VIII

        DECLARATORY JUDGMENT OF INVALIDITY OF THE ‘834 PATENT

       80.      The allegations of paragraphs 1-79 are incorporated by reference as if fully set

forth herein.




                                                 -14-
       81.     Based on the above-stated conduct, Creative Mobile is informed and believes that

the Defendant contends that Creative Mobile infringes one or more claims of the „834 patent.

       82.     Creative Mobile denies that it infringes any valid and enforceable claim of the

„834 patent, and avers that the assertions of infringement cannot be maintained consistently with

statutory conditions of patentability and the statutory requirements for disclosure and claiming

that must be satisfied for patent validity under at least one of 35 U.S.C. §§ 101, 102, 103, and

112.

       83.     Accordingly, an actual controversy exists between Creative Mobile and

Defendant as to the validity of the „834 patent. The controversy is such that, pursuant to Federal

Rule of Civil Procedure 57 and 28 U.S.C. § 2201 et. seq., Creative Mobile is entitled to a

declaration, in the form of a judgment, that the „834 patent is invalid. Such a declaration is

necessary and appropriate at this time.

                                           COUNT IX

                         PATENT EXHAUSTION AND FIRST SALE

       84.     On information and belief, Apple is a licensee to the Asserted Patents. On

information and belief, Apple‟s License expressly permits Apple to offer and otherwise make

available to its developers, such as Creative Mobile, products and services that relate to the

inventions disclosed in the Asserted Patents. On information and belief, Defendant‟s

infringement claims against Creative Mobile are based on Creative Mobile‟s use of products and

services that Apple is authorized to provide to Creative Mobile under Apple‟s License.

       85.     On information and belief, Google is a licensee to the Asserted Patents. On

information and belief, Google‟s License expressly permits Google to offer and otherwise make

available to its developers, such as Creative Mobile, products and services that relate to the




                                                -15-
inventions contained in the Asserted Patents. On information and belief, Defendant‟s

infringement claims against Creative Mobile are based on Creative Mobile‟s use of products and

services that Google is authorized to provide to Creative Mobile under Google‟s License.

       86.     Under the patent law doctrines of exhaustion and first sale, Creative Mobile can

use the products and services that Apple and Google provide to Creative Mobile free from claims

of infringement of the Asserted Patents. Therefore, Creative Mobile is entitled to a declaration

that Lodsys‟ claims of infringement of the Asserted Patents are barred by at least the doctrines of

patent exhaustion and first sale.

                                    PRAYER FOR RELIEF

       WHEREFORE, plaintiff Creative Mobile prays that:

       A.      The Court declares that Creative Mobile‟s Drag Racing or any other products do

               not infringe any valid claim of the Asserted Patents;

       B.      The Court declares that one or more claims of the Asserted Patents are invalid

               under one or more of 35 U.S.C. §§ 101, 102, 103, and 112;

       C.      The Court makes a determination declaring that Defendant‟s claims against

               Creative Mobile are barred by the doctrines of patent exhaustion and first sale;

       D.      Creative Mobile be awarded for reasonable attorneys‟ fees and costs, including

               costs for experts, pursuant to state and federal law, including 35 U.S.C. § 285;

       E.      Creative Mobile be awarded such other and further relief as this Court deems just

               and proper.

                                DEMAND FOR A JURY TRIAL

       Plaintiff hereby demands a trial by jury on all counts so triable.

       Dated: July 10, 2012                        Respectfully Submitted,




                                                -16-
   s/Michael T. Griggs
   John P. Fredrickson, Esq.
   jpf@boylefred.com
   Michael T. Griggs
   mtg@boylefred.com
   BOYLE FREDRICKSON S.C.
   840 North Plankinton Avenue
   Milwaukee, WI 53203
   Telephone: (414) 225-9755
   Facsimile: (414) 225-9753


   Of Counsel:
   Benjamin Ashurov, Esq.
   bashurov@kb-ash.com
   Samik Bhattacharyya, Esq.
   samik@kb-ash.com
   Bruce McCubbrey, Esq.
   bruce@kb-ash.com
   KB ASH LAW GROUP
   5674 Sonoma Drive, Suite A
   Pleasanton, CA 94566
   Telephone: (415) 754-9346
   Facsimile: (925) 734-8125

   Attorneys for Plaintiff Creative Mobile, O.U.




-17-

				
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